APPROVAL OF REQUISITIONS AND DISBURSEMENTS BY THE COMMANDER IN CHIEF OF A FLEET.

The duty imposed upon the commander in chief of a fleet by article 1381, Navy Regulations of 1900, of approving requisitions and disbursements must be performed by him personally, and can not be delegated to his chief of staff.

(Assistant Comptroller Mitchell to the Secretary of the Nary, April 24, 1905.)

I have received your request of 20th instant for a decision"As to whether it is necessary for the commander in chief of the North Atlantic Fleet to personally evidence his approval of orders, requisitions or other authority to disburse money or dispose of stores, or whether it can be delegated to his chief of staff."

Treasury Department Circular No. 52 of April 29, 1903, prescribes that

"5. All vouchers for services or supplies must contain a certificate of the proper officer that the services have been rendered, and in case of supplies, that they have been delivered and show by whom received."

It is left to the particular department interested to specify the proper officer to make the required certificate, except where that officer is specified by law.

It is provided by article 1381, Navy Regulations, 1900— "(2) In the presence of a flag ship, requisitions shall be forwarded to the commander in chief through the proper channel for his approval; all purchases authorized by him shall be made by the paymaster of the fleet, if there be one; otherwise by the paymaster of the ship requiring the stores."

Article 320, under head "Commander in chief,” “Supplies and repairs," provides:

"He will be held accountable for every disbursement of public money or disposal of public stores made in pursuance of his order. His signature to an order, requisition, or other authority to disburse money or dispose of stores, and his approval of the same, will be considered as evidence of his complete knowledge of and accountability for the transaction." Section 285 of the Revised Statutes is as follows:

"Every disbursement of public moneys or disposal of public stores made by a disbursing officer, pursuant to an order of any commanding officer of the Navy, shall be allowed by

the proper accounting officer of the Treasury in the settlement of the accounts of the officer, upon the satisfactory evidence of the making of such order and of the payment of money or disposal of stores in conformity with it; and the commanding officer by whose order such disbursement or disposal was made shall be held accountable for the same."

It is a well-settled rule of law that where a power is given to a public officer which requires the exercise of judgment and discretion, such power can not be delegated to another. (Mechem on Public Officers, 567.)

The approval of the public bills for the expenditure of public money is no mere formality, but requires the exercise of judgment and discretion as to the necessity for the expenditure and other matters in connection with it, and if an illegal payment is made by the officer's order he is liable for it.

The form for the approval of the commanding officers of public bills for purchases is as follows:

"The above-mentioned articles were purchased after public competition in open market in accordance with Regulations. This bill is therefore approved for pay officer is hereby ordered to pay the same."

and the

The form of approval of public bill for services rendered varies from this only so far as required by the different character of the expenditure.

In view of the laws and the regulation referred to, I am of opinion that the approval required can not be delegated by the commander in chief to the chief of staff, but should be made by his proper signature.

FEES OF COMMISSIONERS IN CHINESE EXCLUSION CASES.

A United States commissioner is not entitled to fees for taking bonds required of Chinese seamen by the Department of Commerce and Labor, such services being a charge against the seamen or the vessel to which they belong.

A United States commissioner is without jurisdiction to take bail from a Chinese person after the order for the deportation of such person has been issued, and where he has taken such bail he is not entitled to fees therefor.

(Decision by Comptroller Tracewell, April 25, 1905.)

This is an appeal filed April 19, 1905, by James Kiefer, United States commissioner for the district of Washington,

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for revision of so much of his account for the quarter ending December 31, 1904, as was finally settled by the Auditor for the State and other Departments per certificate dated April 17, 1905, and relates to two items of charges disallowed by the Auditor for taking bond in each of two Chinese exclusion cases, the one in the case of John Ah Chong, taken after the defendant was discharged, and the other in the case of Koh Wong, taken after the defendant was ordered to be deported.

In the Chong case it was developed on the hearing that the defendant was a member of the crew of an American ship then in port (presumably Seattle) and bound for China, whereupon he was discharged (In re Jam, 101 Fed. Rep., 989), upon condition that the steamship furnish a bond in accordance with rule 16 of the Regulations of the Department of Commerce and Labor (Bureau of Immigration), adopted July 27, 1903, which reads:

"Rule 16. To prevent violations of law by Chinese seamen discharged or granted shore leave at ports of the United States, bond with approved security in the penalty of $500 for each such seaman shall be exacted for his departure from and out of the United States within thirty days.

This regulation does not designate the officer by whom these bonds may be taken and approved, but it appears clear to me that the expense thereof, if any there be, must be borne by the Chinese seaman or the vessel to which he belongs, and the bond now in question being in no way connected with the case before the commissioner, but an entirely different and independent transaction, the fee or compensation therefor does not fall within the act providing fees to United States commissioners (sec. 21, act of May 28, 1896, 29 Stat., 185); therefore, the action of the Auditor in disallowing this item is affirmed.

In the Wong case the order of deportation was issued December 7, 1904, from which defendant appealed and made application to be admitted to bail pending the appeal. The bond in question was taken December 12, 1904. What disposition was made of the defendant between the 7th and 12th is not shown, but I presume he had been committed.

If this were an ordinary criminal case there would be no difficulty, but I have grave doubts as to the authority of a commissioner to discharge a Chinese person on bail, after such

person has been adjudged unlawfully in the United States, even though appeal be noted.

Section 2 of the act of November 3, 1893 (28 Stat., 8), provides that orders of deportation shall be executed with all convenient dispatch, but pending the execution of the order "such Chinese person shall remain in the custody of the United States marshal, and shall not be admitted to bail."

In the face of this positive prohibition I do not think the commissioner, whose jurisdiction ends with the issue and delivery to the marshal of the order for deportation, has authority to admit to bail any Chinese person ordered deported, although appeal be taken from such order. Whether the district court to which the defendant appealed has such authority is not necessary to consider here, but whatever authority that court may have in the premises, it seems clear to me that an appeal can not confer upon a commissioner any jurisdiction he would not have if no appeal should be taken; therefore, the Auditor's disallowance of this item is also affirmed.

DISCHARGE OF AN ENLISTED MAN OF THE ARMY BY PURCHASE.

Under section 4 of the act of June 16, 1890, and General Orders, No. 48, of 1904, only completed enlistments of three years each can be counted in determining the ordinal number of a soldier's enlistment, but previous service may be counted in determining the rate at which a soldier may purchase his discharge under a given ordinal enlistment.

(Decision by Assistant Comptroller Mitchell, April 26, 1905.) Clayton C. Baxley appealed April 24, 1905, from the action of the Auditor for the War Department in settlement dated April 11, 1905.

He claimed pay and allowances and a return of part of the purchase price of his discharge as private of Company B, U. S. Signal Corps.

The Auditor disallowed the claim because—

"Soldier received pay and allowances in full. Having been serving in his fourth year at time of his discharge the amount charged as purchase price ($100) was correct.'

The records of the War Department show that claimant was enlisted August 30, 1901, assigned to the Tenth Battery,

Field Artillery, and was discharged January 17, 1904, on account of disability, a private. He was again enlisted June 4, 1904, at Greensboro, N. C., assigned to the Signal Corps, U. S. Army, and was discharged February 24, 1905, at Fort Myer, Va., per paragraph 8, Special Orders, No. 4, War Department, dated February 18, 1905, by way of purchase. On discharge he received the balance of pay and allowances due him.

There was stopped against his final pay $100 plus the travel pay which he received, being on account of the purchase of his discharge from the service. The soldier contends that there should have been stopped from him the sum of $80 only, plus the travel which he received.

Section 4 of the act of June 16, 1890 (26 Stat., 157), provides:

"That in time of peace the President may, in his discretion, and under such rules and upon such conditions as he shall prescribe, permit any enlisted man to purchase his discharge from the Army. The purchase money to be paid under this section shall be paid to a paymaster of the Army and be deposited in the Treasury to the credit of one or more of the current appropriations for the support of the Army, to be indicated by the Secretary of War, and be available for the payment of expenses incurred during the fiscal year in which the discharge is made."

In General Orders, No. 48, War Department, March 15, 1904, the President has prescribed rules governing the purchase of discharge from the Army. It is provided:

1. In time of peace, except as hereinafter provided, any enlisted man who has completed one year's service as such and is not undergoing punishment nor under charges may obtain the privilege of purchasing his discharge, subject to the approval of the authority competent to order it. The price of purchase will be as follows:

"The travel allowances due on discharge will in all cases form part of the purchase price, which will, by that amount, exceed the prices given.

"Only complete enlistments of three years, increased or